LEGALLY STREETWISE: WHAT YOU DON’T LEARN IN LAW SCHOOL

Initially it was a surprise to discover that law students were being told to read this blog (I am not sure I need that kind of pressure). Apparently prospective pupils and trainees are advised to read it to answer interview questions. It has been many years since I taught law to undergraduates and a “few” more since I was a student myself, so I never write with the student audience in mind. However a post today from Darlingtons solicitors deserves wider publication, and with their permission, I set out the key points there and add a few more of my own.

“Disputes and litigation often bring out the worst in people”

You will almost certainly come across clients who are very streetwise and know their way around litigation situations and life better than you

A litigation client may, as part of his or her strategy, have the intention, from the outset, to possibly blame you for not getting the result they want

Your inexperience and/or naivety may be taken advantage of further by the client seeking credit and/or not paying bills on time. With litigation matters it is imperative to have sufficient money on account, replenished as necessary.

Clients may seek to take advantage of you by trying to get you to be overly aggressive with the opponent’s lawyers and/or compromising your professional position. As a solicitor you have a duty to protect and promote your clients interests but you must also be careful about your ethical duties to other lawyers and the court. Be particularly wary of making any threats at a clients behest to the other party that could be construed as blackmail.

Your client may well not tell you the truth or provide you with full information or documents.

In short, as a junior lawyer you may find that streetwise and savvy clients may deliberately select you as their lawyer for some of the above reasons.”

Forewarned is forearmed

If you happen to be a trainee or a junior lawyer in a very small firm and a new client comes to your firm with what looks like a juicy case in terms of fees and/or complexity, ask yourself why that client has chosen you and your firm. It could be for some of the reasons described above. The client may also assume that in a very small firm, in a very competitive legal marketplace, you might be under pressure to go out of your way to keep him or her happy.

Never underestimate the sophistication of a client or the importance of non-legal aspects to a legal case. This is especially the case with litigation. When someone’s back is up against the wall, where there is a lot at stake, people rarely play nice.

WELL WHAT COULD I ADD TO THAT?

The short article is wonderful both in its brevity and the significance of its message. The one thing I would add is that:

“The findings that are made there would have justified criticism of the conduct of the solicitor representing NatWest, because the evidence of Mr Kelly included that evidence with which he disagreed had nevertheless been included in his written witness statement”

Fortunately the solicitors involved had a careful log of the number of times the witnesses statement had been sent to him for revision.

NatWest has waived privilege sufficiently in relation to the preparation of that witness statement for the solicitor to be able to make a witness statement which has been put before the court at the earliest opportunity, which is today, and which fully explains the circumstances in which Mr. Kelly came to make his witness statement. The solicitor’s evidence refers to the number of revisions – there were about six occasions that he had an opportunity to revise his statement – and to the fact that at the time Mr Kelly had expressed his satisfaction with the content of the evidence. Therefore, Mr Kelly’s disavowal of what was in para.26 of his witness statement came as a complete surprise to those representing the bank. On the material that is now before me, there is no basis for any criticism of the solicitors instructed by NatWest

Similarly in Hughmans -v- Dunhill [2015] EWHC 716 (Ch) the claimant solicitors were suing for their fees. The defendant had, in matrimonial proceedings, been disbelieved by the trial judge.

“As for the witness statementdated 6 July 2011, Ms Dunhill contends that this was inaccurate and misleading in the three respects set out above, and in particular in stating in paragraph 29 that the AST had been “dissolved”. Counsel for Ms Dunhill told me on instructions that it was Ms Dunhill’s case that [her former solicitor] had invented this statement and inserted it in her mouth,an allegation which is not pleaded (or least not clearly pleaded). In the alternative, he submitted that [her former solicitor] should have realised that it was legally inaccurate.{The former solicitor’s] evidence is that the witness statement was prepared “with great care on the basis of [Ms Dunhill’s] detailed written and oral instructions”

THERE IS HOWEVER JUDICIAL SUPPORT FOR A CONCERN THAT LAWYERS DRAFT WITNESS STATEMENTS

THE WOOLF REPORT

In his Final Report on Access to Justice, Lord Woolf observed that:”Witness statements have ceased to be the authentic account of the lay witness; instead they have become an elaborate, costly branch of legal drafting…” (Para 55).

THE JACKSON REPORT

In his Reports Jackson L.J. devoted a considerable amount of time to the unnecessary escalation of costs due to “over-drafted” witness statements.

Over-drafting by the lawyer”.

“3.5 To prepare an effective witness statement in a complex case, substantial input is required from the witness. The lawyer must spend sufficient time with a witness so that he understands what the witness is trying to say. This in itself can rack up costs and this is before several iterations of the statements have been drafted and comments from the witness, counsel and the rest of the solicitor team have been taken into account. Often what appears to happen is that a witness statement simply repeats what is already in the documents and it ends up being a carefully crafted court document more akin to submissions than the story of a lay person.”

THE ABRAMOVICH CASE

In Berezovsky -v- Abramovich [2012] EWHC 2463 (Comm) Mrs Justice Gloster DBE commented on the history of the litigation and length of the witness statements and observed;

“It also led to some scepticism on the court’s part as to whether the lengthy witness statements reflected more the industrious work product of the lawyers, than the actual evidence of the witnesses.”

“Too often (indeed far too often) witnesses who have had statements prepared for them by solicitors tell the Judge that matters in the statement are not correct; they say (all too believably) that they simply signed what the solicitor had drafted for them without reading it through carefully and critically. This reflects badly not only on the witness, but on the whole case presented by the party calling the witness.” (11.1).

HH JUDGE OLIVER-JONES QC

“I have often had occasion to remark about the failure to comply with the CPR so far as witness statements are concerned, as well as the obvious lack of skills of witnesses, and those acting for litigants, in formulating them. It is not infrequently the case that witness statements prepared by litigants-in-person are superior in form and substance to those prepared by solicitors or their agents based upon questionnaires, interviews (often by telephone) or correspondence with witnesses. It is often the case that witness statements, drafted by solicitors or their agents in good faith ( I exclude, of course, any case of deliberate intent to deceive by a witness or drafter), are signed or otherwise accepted by witnesses without any or any proper consideration of their accuracy, completeness or even truth”.

SO PART OF LITIGATION INVOLVES PROTECTING YOURSELF

Good records.

Good attendance notes, made contemporaneously.

TAKE AN EXAMPLE FROM THE MEDICAL PROFESSION

It is worthwhile reading the posts from the Medical Defence Union. It has interesting posts on the stress caused by complaints; handling complaints; what to do if complaints are made. However it also has an emphasis on avoiding negligence. In 2015 Dr Claire Macaulay wrote in her Top 5 New Year’s Resolutions for doctors

“1. I will document in the notes as if my life depended on it.

The primary purpose of the clinical record is to ensure safe ongoing care of a patient and to allow other clinicians, and the patient, to understand your clinical findings and plan of management.

In many ways, your professional life may well depend on what you have written in the notes. You have a GMC obligation to keep clear, accurate and legible records. In the event that a complaint is made to the GMC or a claim is brought for medical negligence, the notes will be vital evidence of what you did or did not do. The MDU has experience of many cases where a GMC panel or a court has preferred the patient’s version of events, as the consultation is a one off event for them, compared with the doctor who may have seen many patients that day. Record important negative, as well as positive findings, document clearly what the plan is and make sure you have a robust system for following up and documenting test results.

In short – document, document, document.”

Similar points apply in law. Not only for your own protection, but it also assists in the assessment of costs and in the running of the case generally.